REPRESENTATIVE GOVERNMENT 

\ 

AND THE COMMON LAW 

A'STUDY OF THE INITIATIVE AND REFERENDUM 

AN ADDRESS DELIVERED 
AT THE 

143D ANNUAL BANQUET 

OF THE 

CHAMBER OF COMMERCE 

OF THE 

STATE OF NEW YORK 

AT THE 

WALDORF-ASTORIA 

NOVEMBER 16, 1911 


BY 

Honorable EMMET O’NEAL 

GOVERNOR OF ALABAMA 


NEW YORK: 

PRESS OF THE CHAMBER OF COMMERCE 


1911 














* 


3 


v V9 A 

'V xV 


“ REPRESENTATIVE GOVERNMENT AND THE 
COMMON LAW.” 

ADDRESS OF HONORABLE EMMET O’NEAL, GOVERNOR OF 
ALABAMA. 

Mr. President, Ladies and Gentlemen.— Permit me to express 
my sincere appreciation of the honor conferred upon me and the 
state I represent by your gracious courtesy in giving me this oppor¬ 
tunity to raise my provincial voice under the auspices of this 
ancient Association. Yet the high compliment which your invitation 
conveys does not prevent me from recognizing my incapacity to do 
justice to this subject and occasion, or exempt me from a sense of 
humility in being accorded the privilege of standing in the place 
made memorable by orators, soldiers and patriots, whose great names 
have made the roll of your guests, a roster of distinguished honor. 

From the far off day when a shilling a plate supplied the meagre 
furnishings of your banquet board to this good hour, this Association 
has stood for those principles of business probity and conservative 
government upon which are based the growth and power of a 
Republic, whose institutions are founded on the rights and fortified 
by the intelligence of the people. It is therefore consistent with all 
of its history, that in this hour of political unrest and threatened 
change, it should invite a defense of that scheme of government which 
has in the past stood as a bulwark of defense, against the encroach- 


'/VU 38 


4 


ments of arbitrary power and the oppressions of the inconstant 
numerical majority. 

To no enlightened people can any subject be of more vital moment 
than the making of the laws under which they are to live and under 
which they expect to enjoy those rights and liberties, not only 
necessary to human happiness, but essential to a developing civiliza¬ 
tion. 

The empiricism of political doctrinaires and the vicious experi¬ 
ments of political charlatans have ever been the deadly foes of wise, 
stable and salutary legislation. Yet there must be a law-making 
body, composed either of the people themselves, acting directly in 
their organic capacity or through chosen representatives. Fully 
recognizing that fact the wise men who framed the Constitution of the 
United States, after mature reflection, thorough investigation and 
debate, unanimously discarded the system of direct legislation and 
established a representative republic as contradistinguished from a 
social or pure democracy. The warning lessons of history had taught 
them that the so-called republics of ancient and modern times, 
through the absence of the representative principle had ever been 
found, as Madison declared, Spectacles of turbulence and con¬ 
tention, incompatible with personal security or the rights of property, 
and had in general been as short in their lives as they had been 
violent in their deaths.” 

It has been fashionable of late years for many, who masquerade 
under the title of progressives, to speak in sneering terms of the men 
who established our system of free government. Yet those men had 
a genius for constitution making unequalled in any other age of the 


r 

lr 


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0 


world. They were not only profound students of history but were 
free from party bias, passion or prejudice. They had accomplished 
successfully a revolution against the greatest military and naval 
power of the world. They were of English stock, but bred under new 
conditions, they had inherited as their birthright a love of liberty 
and a hatred of oppression. It has been truly said that no body of 
men ever gathered together in history had a sublimer trust in the 
wisdom and eternal capacity of the people for self-government. Yet 
they were profoundly impressed with the conviction that there never 
was a Republic as formerly constituted which had not terminated 
“its fugitive and turbulent existence” with the destruction of the 
liberties of the people. They agreed with the sentiment voiced by 
Wilson, when he declared that the doctrine of representation in 
government, which was altogether unknown to the ancients, was 
essential to every system that can possess the qualities of freedom, 
wisdom and energy. They had renounced the divine right of kings, 
but were unwilling to establish the divine rights of majorities. 
Direct action by the people they deprecated. They were seeking to 
erect a government to endure for all time ; “ a government of laws 
and not of men.” 

In embodying in the constitution the guarantee of a republican 
form of government, they could have had no other purpose than to 
interpose a barrier against the encroachments of such revolutionary 
political vagaries, as the initiative and referendum. I, therefore, 
unhesitatingly assert that a study of the history of our government 
clearly establishes that those who claimed to be inspired by a wise 
spirit of progress and profess only a purpose to restore popular 


6 


government by the introduction of the system of initiative and 
referendum, are reactionaries, guilty of the folly of attempting to 
revive a doctrine unanimously repudiated by the wisdom of the 
Fathers. They seek not merely a change of laws or established 
policies, which if unwise could be readily repealed, but they undertake 
to so alter the fundamental law of each state as to weaken or over¬ 
throw the representative principle and inaugurate a radical revolu¬ 
tion of the basic principles on which the fabric of American govern¬ 
ment rests. 

I admit that it is seriously claimed that the initiative and referendum 
would not cause an abandoment of representative government, but no 
candid mind can doubt that a legislative body, with its functions and 
prerogatives exercised by the people at large, would not long exist 
except in name. The weakening of its powers and the loss of its 
dignity and responsibility would be the inevitable precurser of its 
decline, speedily followed by the complete prostration of the repre¬ 
sentative principle. 

Any constitutional provision which weakens or impairs the power 
and efficiency of either of the three co-ordinate departments of 
government must necessarily weaken and impair the efficiency and 
harmonious action of the whole. Each acts as check upon the other, 
and if the power and vigor of any department be impaired or 
overthrown, it necessarily unduly increases the power of the others, 
thus destroying that harmonious system of checks and balances which 
is the distinguishing feature of our constitutional system. Wise and 
just legislation cannot be the product of haste, passion or immature 
judgment. To overcome the evil effects of sudden and strong excite- 


ment and of precipitate measures, springing from caprice, prejudice, 
personal influence and selfish interests, the representative system was 
established. That deliberation, investigation and judicial considera¬ 
tion which is essential to the enactment of wise laws is secured by 
those provisions found in every state constitution, which in mandatory 
terms requires each bill to be submitted not alone to one deliberative 
body but in turn to each of two, and to be considered by each on 
three successive days. 

The division, therefore, of the legislative department into two 
separate and independent branches, constitutes one of the most important 
features of our system of government. One is generally composed of 
men who by reason of their short terms and frequent elections, are 
always fresh from the body of the people and are readily responsive 
to every pressure of public opinion. The period of their delegated 
authority is too brief for their independent judgment to overcome 
their susceptibility to the popular will. The members of the other 
body, selected by a larger constituency, representing more varied 
interests and further removed by their longer terms from the passions 
or follies of the hour, may justly be expected to exercise with 
courage, independence and judgment, a corrective influence upon 
legislation born of demagogical prejudice, inspired by unwise or 
visionary political theorists, or based upon some Utopian dream. 
The tendency of the one is to impulsive action, and of the other to 
conservatism ; and out of this contest of opposing forces and this 
clash of conflicting thought illumined by debate and informed by 
investigation, comes of necessity laws, into the construction of which 
there enters not only the will of the people but those elements of 


8 


moderation, justice and wisdom, and that due regard for the rights 
of the minority, which are inseparable from wise and just legislation. 

Yet we are asked, through the system of the initiative and 
referendum, to abandon every safeguard with which experience and 
wisdom have surrounded the making of our laws. We are invited to 
substitute for those representative bodies—whose members through 
the usually required qualifications of a fixed period of residence and 
the attainment of a certain age, are presumed to have some familiarity 
with the spirit of our institutions, and to have reached maturity of 
judgment, and to possess at least average ability and character,—the 
system of direct legislation by the whole body of the people, including 
the criminal* the adolescent, the indifferent and the retainers of 
special interests. 

On the false and specious pretext of restoring popular rule and 
correcting the evils of the representative system we are asked to 
exchange for the deliberate examination to which legislative bills are 
subjected and through which fatal defects and artfully concealed 
dangers are so frequently discovered, the passions, the prejudices and 
the partisan bias which every popular campaign develops, substituting 
for the information of debate the appeal of the demagogue; and 
exchanging for the opportunity of amendment, the categorical Yes 
and No, with which under the initiative, the voter must meet the 
subtle and involved proposals of special interests or the wild schemes 
of visionary reformers. [Applause.] 

We do not betray distrust of the people by heeding the unequivocal 
language of experience, and by refusing to exchange for that delibera¬ 
tion, independence and conservatism which comes from subjecting 


9 


every law to the critical and jealous revision of two legislative cham¬ 
bers, and by which unwise and dangerous measures are less apt to 
proceed to the solemnities of law, the independent, unrestrained and 
unrestricted action of the numerical majority. 

Through the operation of the initiative a further and more potent 
check on intemperate legislation is removed by eliminating the power 
of the executive to amend or veto any measure enacted by direct vote 
of the people. Through the power to propose, amend or veto legis¬ 
lation, conferred by the express terms of almost every American 
constitution, the executive is made a part of the law making 
department and placed on guard to protect the interests of the people 
against the enactment or evil effects of unjust, unwise or vicious 
legislation. Yet, under the system of the initiative, both the executive 
and legislative departments are shorn of their constitutional powers. 
Initiated and enacted by direct vote of the people, however unwise a 
law may be, however much it may destroy the rights of property, 
invade constitutional guarantees or impair personal liberty, the execu¬ 
tive is powerless to intervene to protect the people against the blow, 
which from the folly or madness of the hour, they might aim at them¬ 
selves. The only recourse would be the courts, which, where the 
system of recall prevails, destroying judicial independence, would be 
more apt to register popular opinion than to enunciate decisions based 
upon well-settled principles of law. [Applause.] The messages of 
the governors of the various states, heretofore characterized by bold¬ 
ness and independence of thought and useful suggestions, resulting in 
so much wise and beneficent legislation, would largely cease to express 
their earnest and sincere convictions, but instead, would become merely 


10 


a register of popular passion or prejudice and the suggestions of im¬ 
practical theorists—the transient and misdirected forces of popular 
opinion. 

It is established by the experience of every section that until 
abuses become intolerable the demands of personal affairs are too 
absorbing and the burdens of that public duty which citizenship 
imposes upon the individual are too heavy or exacting to permit 
more than a mere perfunctory interest in public matters. In my 
judgment, therefore, the efficient cause for the larger part of our 
political ills and of the misgovernment that we may endure, or the 
treason that may develop in legislative bodies, lies in the indifference 
of the people themselves and not in their failure to directly partici¬ 
pate in the making of the laws. 

Whenever the people are aroused and demand a just relief, legisla¬ 
tors are quick to hear and ready to obey. It is not through direct 
legislation but in an aroused public conscience, the growth of a 
stronger sense of civic duty, a more diligent and watchful interest by 
the people over their own affairs, that we must rest our ultimate 
hope of permanent political reform. The forces of reform are too 
often short-lived, while the evil influences they may overcome gener¬ 
ally arise from defeat with renewed vigor. 

An antidote to this indifference of the people and a safeguard 
almost sufficient in itself to overcome the existence of a venal or 
corrupt legislature can be found in the high sense of official obliga¬ 
tion and the independent exercise by the great majority of American 
executives of the legislative functions vested in them by the consti¬ 
tutions of the states. 


11 


It seems to be assumed that under the system of the initiative only 
those laws would be proposed which a legislature under the control or 
domination of special or selfish interests would refuse to pass, and 
that all such rejected laws would be in the interest of the people. 
I cannot bring myself to the adoption of this pleasing thought. I 
fear that with the advent of this political millennium there will 
still remain, here and there, some unregenerated interests, some 
seeker for special privilege, whose desires, in imitation of the prac¬ 
tices that prevailed in the older days, could still be concealed under 
the guise of some fair-seeming bill. It would be everybody’s business 
to act as a committee to examine it, to expose its fallacies or to warn 
the public against its insidious purposes. The necessary result would 
be that nobody would give it careful scrutiny or supervision. It 
would not be subject to such amendment as wisdom or experience 
might suggest. It must be accepted or rejected in the exact form 
and terms in which it is proposed. It would not even be read aloud 
once in the presence of all whose duty it would be to vote upon it, 
and it might become a law by the vote of a single individual who 
had never read it until he cast his ballot. It is not improbable that 
there might be an astute or unscrupulous interest behind it, giving it 
secret aid and comfort, and although with a greedy legislature look¬ 
ing on from afar off, there would not be even any Adams County votes 
for sale, neither would there be anyone, as was the Governor in 
former times, before his power had been overthrown by this modern 
political reform, charged with the duty of protecting the public 
against its own indifference, or checking the misguided career of 
public opinion. There would be no magic, from the destruction or 


12 


overthrow of the legislature, by which the ordinary citizen, to whom 
political duty is but an incident, could be converted into an alert, 
vigilant and well-informed legislator. To qualify a citizen to vote 
intelligently upon a law involves a degree of investigation and 
attention to detail and a quality of thought that will be voluntarily 
assumed only by the elector who appreciates to an extraordinary 
degree the duty which his citizenship imposes, or an individual who 
has in the measure a personal interest, not consistent with the public 
good. 

With the initiative in operation, it would be the sheerest folly to 
suppose, that the number of laws would come within the compass of 
the ordinary man’s serious and considerate examination, and in the 
consideration of matters which furnish opportunity for demagogical 
appeals and class or racial prejudice, the very purpose for which 
government exists would often be defeated, and the rights of a 
helpless minority no longer protected by the safeguards now secured 
by every American constitution would be ruthlessly sacrificed. 
[Applause.] 

I assume that no one will controvert the proposition that laws 
ought to be made in a spirit as impersonal, with a sense of duty as 
high, with a conscience as much bound by the solemnity of an oath, 
with a mind as much informed by argument and debate, and sur¬ 
rounded by an atmosphere as much removed from bias and passion as 
that in which they are construed and enforced. 

To discard well-established methods of procedure by which truth is 
ascertained and justice administered in our Criminal Courts and to 
submit the question of the guilt or innocence of a person charged 


13 


with crime to the ballot of the electorate would shock the public 
conscience. Yet to say that men without any more responsibility 
than is imposed by their own sense of duty, influenced possibly by 
malice, prejudice or self-interest, without legal check or constitu¬ 
tional limitation, could by the mere brutal power of a numerical 
majority, take away the most sacred rights or impose the most intoler¬ 
able burdens upon a helpless minority, would be equally as shocking 
to every man whose sense of justice was not blunted by the poison of 
false and vicious political theories. 

If the claim that opposition to the initiative discloses a distrust of 
the people be true, then there is no constitutional limitation, by which 
the people restrain themselves, which cannot be regarded as a 
reproach. Not a criminal statute has ever been adopted which does 
not in effect affirm the possible existence of a class of people who 
may prove unworthy of public trust, and who might by their ballots, 
after the commission of a crime but before conviction, fasten upon 
their fellowmen an unjust and onerous law. 

Opposition to the initiative then is not a declaration of distrust of 
the people but a recognition of that sound political truth, that in the 
multitudinous interest and varied activities that go to make up the 
sum of a great people’s life, there must be to a qualified extent dele¬ 
gations of public duties and well-considered divisions of public power 
and public responsibility. To combat this political heresy is not to 
distrust the people. We would ignore the unmistakable teaching of 
history if we failed to recognize that every nation which has achieved 
political and orderly liberty has done so through the representative 
system and that every government which has abandoned it for the 


14 


despotism of a monarchy, or for the turbulence, tyranny or uncer¬ 
tainty of an unlimited democracy, has fallen into decay and suffered 
the loss of its animating and sustaining principle. [Applause.] 
England’s parliament has never yielded its prerogative nor have her 
people ever established a commune. When the first gleam of politi¬ 
cal and civil liberty that ever lightened the darkness in which the 
Russian peasant moved, made its appearance, it was contemporaneous 
with the establishment of a Duma. 

Unless this political heresy is checked the hosts of socialism, re¬ 
inforced by selfish and time-serving politicians and recruited by all 
the elements of discontent, will soon direct their attacks against the 
Federal Government itself and gradually sap and undermine the 
foundations of our free institutions. 

It is claimed by the advocates of the initiative that that system is 
necessary because representatives in the Legislature can not be 
elected who are possessed of that capacity and fidelity to duty which 
fits them to properly perform the high functions of their great office. 
Such a position, it occurs to me, not only plainly evidences a distrust 
of the people, but is based on the assumption that the people are 
incapable of self-government. If it be true that the people are 
so sunk in abject subservience to political bosses, so tied to the wheels 
of the political machines, that unworthy legislators can alone be 
elected, where would be the limitation on the power of those bosses 
or of that political machine to force through the same electorate the 
passage of any laws that their selfish interests might dictate when 
every safeguard which now surrounds their enactment is removed ? 

As an American citizen, I am indeed proud to say that it is not 


15 


true that the men who have represented the sovereignity of the 
states, who make the laws which protect us in our lives and property, 
who levy and disburse our taxes and frame our civil and criminal laws, 
are unworthy and corrupt. There may be isolated instances where 
members of the legislatures have betrayed the interests of the people, 
just as there have been isolated instances of wholesale corruption 
among the people in some localities, but the fault lies not in the 
system but in the frailties of human nature. The legislators of the 
various states of the Union have been, as a general rule, the picked 
and chosen men of the communities from which they have come, and 
have been honest, wise and patriotic. From whose hands have come, 
during the century or more of our existence, those laws under which 
we have grown and prospered and held a higher measure of freedom 
than has ever come to the lot of any people ? The statute books of 
the American states are filled with wise and beneficient laws, through 
the operation of which they have grown into great and powerful 
commonwealths. It was a great statesman, from whose lips words of 
idle or extravagant praise never fell, who said : 

“ The statute books of these commonwealths can be read by 
the patriotic without a blush. I am not afraid to compare them 
with the two hundred parliaments through which for eight 
hundred years the freedom of England has broadened down from 
precedent to precedent.” 

Members of the legislatures of the different states are the agents 
and direct representatives of the people, and if it be true that as a 


16 


whole they are incompetent, unworthy and corrupt it would follow 
necessarily that the masses of the people from whom they spring 
and from whom they are selected were also either corrupt or crimi¬ 
nally indifferent to their interests or liberties. They possess the 
same characteristics as the people from whom they have come, and if, 
after repeated trials and selections, the community cannot secure an 
intelligent and honest man to represent it, I would not like to live 
under laws initiated or adopted by the sovereignty of that people. 
[Applause.] 

It is a sound governmental principle that political power should 
always be accompanied with responsibility located and identified. 
Where responsibility can not be placed it does not exist, and an 
irresponsible power in government inevitably leads to oppression or 
the loss of liberty. That this responsibility shall not be evaded 
under our representative system of government, the constitution of 
every state requires that the legislative record shall disclose the 
presence or the absence of each legislator, his vote and his position 
on every bill. Where in the system of the initiative would this 
sobering knowledge of responsibility rest? What right would one 
citizen have to call another to account ? Each would represent only 
himself, and with the utter lack of responsibility on the part of 
the law-making body arbitrary and irresponsible power would be 
enthroned and the reign of anarchy commence. 

We should not overlook the fact that under the initiative, wherever 
introduced, the state constitutions can be altered or amended with 
greater ease and facility than even an ordinary statute under the 
present representative system. No submission of the proposed 


17 


amendment by a two-third’s vote of the legislature is required. A 
small per cent, of the voters can at any time propose the most radical 
or far-reaching constitutional changes and-the fundamental law which 
our people have ever been taught to regard as a shield of defence 
against the attacks of irresponsible power, which has ever been hedged 
around with those difficulties of approach so essential to stable govern¬ 
ment, would become 

“As variable as the shade 
By the light quivering aspen made.” 

We all recognize the truth of Madison’s declaration that too much 
legislation is one of the evils of republican government, and hence 
every recent constitution has wisely adopted numerous restrictions and 
limitations on legislative power. Yet, we know that notwithstanding 
all these limitations, every state has been burdened with too much 
legislation—an ever increasing flood of local and private and general 
l aw —destroying all uniformity and harmony in the law itself, till in 
the multiplicity of statutes the citizen is vexed, harrassed and confused. 
Yet, this wise tendency, so clearly manifested in all modern constitu¬ 
tions, to check the ever increasing volume of laws on every conceivable 
subject, is now to be denounced as a political blunder, and pernicious 
legislative activity is to be supplemented by laws enacted by the direct 
vote of the people. If hasty, ill-advised and ill-considered legislation 
still remains as one of the vices of our representative system, notwith¬ 
standing all the checks and limitations on legislative action found in 
our state constitutions, is it not the madness of folly to undertake to 


18 


supplement the present legislative activity by authorizing the making 
of additional laws by a direct vote of the people and without any of 
the safeguards secured by deliberation, investigation, amendment, 
debate or constitutional restrictions ? 

We may be impatient with our state legislatures, but the remedy is 
not to sap or weaken their powers but to elevate their tone and 
standard, to re-organize them along simpler lines and to make them 
the real organs of public opinion, checking the evil effects of hasty 
and ill-considered legislation, and giving expression to the cool, 
deliberate and mature judgment of the people. 

Much has been heard in late years of big business. The biggest 
business conducted in this country is that involved in the government 
of the various states. Is it not wise to apply sound business 
principles in administering the affairs of these great public organiza¬ 
tions? What would be the fate of any of the great private corpora¬ 
tions, if their directors, elected by the stockholders, representing 
and legislating for them and responsible to them, were discharged 
and the whole mass of stockholders as a body, some wise, some 
foolish, some mere children, many entirely ignorant of business prin¬ 
ciples, few moved by the common good, most animated by the desire 
to secure personal gain, should undertake to direct their policies ? 
In the management of the corporation good government with the 
highest returns and best results, is the object sought to be achieved. 
There can be no difference in kind, in the principles applicable to 
each, and experimental policies, dangerous in their tendencies, ought 
to be as carefully avoided in the one as in the other. 

That doubtful political policies ought not to be pursued except in 


19 


the most extreme cases is a sound rule of conduct that I would be 
happy to bring home to every thoughtful and patriotic American 
citizen, for there is abroad in the land a dangerous tendency which 
would seek to convert every governmental agency into a political 
experimental station. Unfortunately, there is too evident among our 
people a love of novelty and “ passion for changing customs and 
destroying old institutions,” which would exchange our proved and 
tried system for one, which, however alluring to the political theorist, 
has always preceded the fall of stable government and the loss of 
political liberty. Were we without any other remedy, and our con¬ 
dition was as deplorable as the propagandists of this new specific for 
all our political ills declare, for my own part I would still hold fast 
to the faith of the Fathers, rather than attempt “ to upset an ancient 
system hallowed by long use and deep devotion.” 

If any proposed reform seeks to weaken or overthrow a system 
whose introduction has been co-incident with popular liberty let us 
not hesitate to give it the stamp of our stern disapproval. If free 
institutions are to continue, ours must be a representative govern¬ 
ment. As declared by your distinguished guest, Hon. James Bryce, 
government by representation is a principle derived from the oldest 
customs of the Anglo-Saxon race. Students of English constitutional 
history can trace the existence of representative assemblies to every 
period of its national existence, even to remote antiquity. From the 
earliest forms of tribal government down to the present day there 
was some form of legislative assembly representing the people, 
framing their laws and assisting in their government. With all its 


20 


defects a representative system is the best the wisdom and experience 
of man has yet devised. [Applause.] 

But assuming that venal legislators, entrenched in power, deny the 
statutes they should enact, and refuse to give expression to the calm 
and deliberate judgment of the people, there is and will always be 
found in the flexibility of the common law, in its adaption of old prin¬ 
ciples to meet changing conditions, a source of power with which the 
courts are amply armed to curb the aggressions of special interests. 
The common law I may define to be that code of fundamental principles 
essential to civil liberty and political freedom, growing out of common 
custom and natural equity, which were brought by our English 
ancestors to these shores, and out of which the civil rights and the 
political liberty of the English people was wrought and in which they 
are securely rooted, and whose harshness has been ameliorated in the 
progress of an advancing civilization. 

It has been truly said : 

“One of the great merits of this great system is that it does 
not consist in a series of detailed practical rules, established by 
positive provisions, and adapted to the precise circumstances of 
particular cases, which would become obsolete and fail when the 
practice and course of business to which they apply should cease 
or change; but, instead, of a few broad and comprehensive prin¬ 
ciples, founded on reason, natural justice and enlightened public 
policy, modified and adapted to the circumstances of all the 
particular cases which fall within it. 

The common law grew with society, not ahead of it. As society 


21 


became more complex and new demands were made upon the law 
by reason of new circumstances, the courts, originally in England, 
out of the storehouses of reason and good sense declared the 
common law.” 

As was said by a great judge: 

“The common law is a beautiful system containing the wisdom 
and experience of ages. Like the people it ruled and protected, 
it was simple and grew in its infancy, and became enlarged, im¬ 
proved and polished as the nation advanced in civilization, virtue, 
and intelligence. Adapting itself to the conditions and circum¬ 
stances of the people and relying upon them for its administration 
it necessarily improved as the condition of the people was 
elevated.” 

As the principles of natural justice and a sound public policy do not 
change, the common law, which springs from them, is not subject to 
decay, nor does it become obsolete with changing circumstances and 
differing conditions. It is to-day “fresh in the vigor of immortal 
youth,” as potent a living principle as it was when administered by 
Mansfield or by Hale, and in its ample powers the courts will 
always find abundant authority to meet every need of government or 
society. 

However reluctant legislators may be to act it will be a strange 
case indeed in which the common law principles to fit and to protect 
may not be found. 

As a corollary to the initiative, the referendum is proposed to 


22 


complete the wreck of representative government, and as a fitting device 
to securely accomplish the atrophy of the legislative functions and to 
reduce legislatures from co-ordinate departments of government to a 
body of mere clerks engaged in performing ministerial duties. When 
legislatures are compelled to submit their work to the approval of the 
electorate, there would no longer rest on the electors the duty of 
selecting men of character and capacity to represent them ; nor will 
the members of such bodies feel the weight of that responsibility which 
ought to follow public office. That the character of legislation 
produced by such a body would lack both wisdom, strength and vigor 
seems too evident to discuss. 

It is no argument in favor of the referendum to say that it is the 
course followed with reference to constitutions. A Constitutional Con¬ 
vention is under no necessity to submit the product of its labors to the 
people for ratification. While it usually does so as a matter of choice, 
in doing so from its own free will it takes more pride in presenting to 
the people work well done, and is wholly lacking in that sense of 
inferiority, which under a compulsory submission can but result in 
indifferent service. 

It is my earnest hope that the far-reaching and disasterous effects of 
these proposed changes will be fully understood by all my countrymen 
before they give them the sanction of their approval. 

1 am deeply impressed with the conviction that their adoption would 
so fundamentally change the entire structure of our political system as 
to amount to revolution and destroy the whole theory upon which odr 
government rests and upon which the permanence and vitality of our 
institutions depend. 


23 


Let us all here to-night, inspired by the patriotic memories of this 
ancient Association, consecrate ourselves anew to the service of our 
states and the nation, and here firmly resolve that that splendid struc¬ 
ture of constitutional government builded by the wisdom and loving 
care of the Fathers, and under whose fostering shelter we have enjoyed 
the greatest measure of freedom, happiness and prosperity known to man, 
shall not be defaced or impaired by the attacks of sincere but misguided 
men—of time-serving politicians or of political charlatans. [Applause.] 
That the Providence whose guiding hand has been so manifest in all 
the course of our national existence will still lead us safely through 
these days of doubt and uncertainty I confidently believe. In the 
genius of the race, I have an abiding conviction that there is and 
always will be found a redeeming and protecting spirit to walk beside 
us and through all trials and from all shadows bring us unharmed 
into that fuller light, to which in the speedy progress of our national 
evolution we are surely tending. [Applause.] 



Ffb 1 1912 


library of congress 



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